Friday, 31 July 2015

Several thousand migrants are
living in poor conditions near Calais, many apparently intent on making it to
the UK. Their attempts to find passage via the Eurotunnel are severely delaying
travel on both sides of the border. Which country is responsible for them: the
UK or France?

At the outset, we should note
that this is in a way a clash between two different types of movement within
the EU. On the one hand, we have the free movement that the EU specifically
tries to encourage: the free movement
of goods in the lorries, persons in the trains, and transport services in
either context. On the other hand, we have what the EU calls ‘secondary’
movements of (potential) asylum-seekers, which it specifically tries to discourage. EU internal market law is
adopted to facilitate the first type of movement, while EU asylum law is
harmonised to reduce the incentive for the second type.

Of course, the migrants don’t
actually want to shut EU free movement down, since that would defeat their
whole purpose. They merely want the lorries to slow down long enough to stow
away on board, then continue on their journey – in effect bringing the two
types of movement together. It’s the government attempts to prevent this that
leads to near-gridlock.

But which of those governments is
responsible? Let’s examine the issue first from the migrants’ perspective, and
then from the free movement perspective. (While some consider the word
‘migrant’ offensive, I will continue to use it. In my view, it simply refers to
a category of people, like teachers or nurses. It would make sense to refer to
them as ‘asylum-seekers’ or ‘refugees’ only if it were clearly the case that
almost all of them had applied for asylum or qualify as refugees; the available
information doesn’t indicate this clearly enough. The word ‘migrant’ doesn’t
deny their humanity; it simply explains their situation.)

Immigration and asylum law

Some of the migrants have applied
for asylum in France, and so their position is governed by EU asylum law. This
includes the Dublin Regulation, which determines which Member State is
responsible for their application. That may not be France, but rather the
Member State which they first entered – if France can prove that they entered
there. If France cannot prove that another Member State is responsible, then it
must assume responsibility. The UK would only be responsible for their
applications if they have close family members in the UK, living there as
refugees or asylum-seekers.

In the meantime, while the
asylum-seekers are on French territory, the EU’s Directive on reception conditions for asylum-seekers applies. The EU Court of Justice has
specifically ruled, in a case involving France, that this Directive
applies to the State where asylum-seekers are currently located, even if the
Dublin rules say those asylum-seekers should be transferred to another Member
State. It only applies to that other Member State once the asylum-seekers are
actually transferred there. This ruling obviously applies a fortiori to asylum-seekers who simply want to travel to another
Member State and apply there instead. The whole point of the Dublin Regulation
is to deny asylum-seekers exactly that choice. Although the Regulation fails
epically in practice to stop asylum-seekers trying to choose the State they
would like to apply in, the Directive still applies to ensure minimum living
standards for asylum-seekers in the State they are present in.

What does that mean in practice?
The Directive requires the Member State where the asylum seekers are present to
ensure basic standards as regards welfare and accommodation, among other
things. It appears from press reports that these standards are not respected as
regards the migrants near Calais.

Furthermore, the latest EU Directive
on asylum procedures, which applied from last week, sets deadlines to deal with
asylum claims. That part of the Directive doesn’t apply until 2018, but it
could be argued in the meantime that the principle of effectiveness of EU law
(which the CJEU has frequently applied in immigration law cases) requires
asylum claims to be dealt with efficiently, not just ignored. As for the substance of asylum law, some press reports suggest that France gives asylum to Eritreans much less often than
the UK (and much of the rest of the EU). This may be due to a flawed
application of the EU’s Qualification Directive. If this is not being
fixed in the French courts by an asylum-seeker’s appeal or a judicial review by
NGOs, then the Commission should identify the specific error in interpretation of
the law and bring infringement proceedings against France.

But not all of those migrants
have applied for asylum. For those people, since it seems unlikely that any of
them are legal migrants, this must
mean that they are irregular migrants. Their position in France is therefore
governed by the EU’s Returns Directive, which specifies that the Member
States must issue irregular migrants with a return order and try to enforce
their expulsion to a country of origin or transit as soon as possible. The EU
Court recently ruled that Member States could not simply issue irregular
migrants with a fine and make no effort to remove them. It must equally follow
that Member States cannot turn a blind eye to their existence, when (as in the
Calais case) a large number of them are openly staying on Member States’
territory.

The Returns Directive does not create
an absolute obligation to remove irregular migrants. First of all, a Member
State can choose to regularise their position at any time. Secondly, if they
apply for asylum, EU asylum law applies, until the end of the asylum process,
when they are either recognised as needing protection or their application
fails its final appeal. In the latter case, the Returns Directive then applies
again. Thirdly, it may prove impossible in practice to remove them to their
State of origin or transit, because there is not enough proof of where they
come from. In that case, they remain in
a kind of limbo, unless the State chooses to regularise them. Irregular
migrants are entitled to emergency health care and essential treatment of
illness during their stay. As far as we can tell from press reports, it does
not appear that the French authorities are making any active effort to return
the irregular migrants in Calais to their countries of origin or transit
pursuant to the Directive.

Free movement law

The CJEU has ruled, in a case
involving France, that Member States have a responsibility to prevent
free movement of goods being disrupted by private individuals. While States
have a margin of discretion exactly how to deal with that private behaviour, it
is not unlimited. In that case, farmers’ groups had been vandalising lorries
full of other Member States’ produce for years on a regular basis, and many of
the perpetrators were known to the police. France was therefore liable for
doing nothing very effective to stop this. It was compensating the victims, but
this was not enough.

On the other hand, in the case of
Schmidberger, Austria was not liable
for allowing a disruption to trade by private protesters who briefly blocked a transit
route. According to the CJEU, the protesters’ right to demonstrate overrode the
free movement of goods, given that the disruption didn’t last very long.

What about industrial action?
This is also a separate source of the current restrictions on movement between
the UK and France. On this point, the CJEU has been quite critical of trade
union action that restricts free movement: in the controversial cases of Viking Line and Laval, it ruled that while EU law
recognized trade unions’ right to strike and take other collective action, these
rights were easily overruled by EU free movement rules. But those cases
concerned the freedom of establishment and free movement of services; the
current strikes in France affect the free movement of goods. An EU Regulation
adopted after the earlier French case states that while States have an obligation
to deal with private disruptions to the movement of goods, this is without
prejudice to the right to strike.

Applying these cases to the
current problems at the UK/France border, it’s not clear whether the
disruptions caused by strikes are an unjustifiable restriction on free movement.
The strikes seem only to concern pay and
conditions, whereas in Laval and Viking Line, while the disputes were also
indirectly about pay and conditions, they were mainly directed at shutting down
free movement due to perceived ‘social dumping’.

What about the disruptions linked
to the migrants’ attempts to travel to the UK? While EU law does recognize a right to asylum,
it’s possible to apply for that right in any Member State, and so it is not
necessary to travel to the UK to that end. The number of migrants would surely be
reduced if France applied its obligations to: process asylum applications; decide on Eritrean
claims correctly; and remove irregular migrants who had not applied for asylum. France must also

extend basic standards of welfare and housing to asylum-seekers, whether that acts as a 'pull' factor or not.

Is the UK liable in any way? The
UK does exercise border controls on French territory, pursuant to a treaty
between the two countries on ‘juxtaposed controls’, agreed in the context of
the Channel Tunnel. But the UK’s obligations under that treaty do not extend to
admitting asylum-seekers or other irregular migrants who want to use the tunnel
to travel to the UK. More broadly, the UK’s border checks in France don’t turn
any part of France into British territory, just as the reciprocal French border
checks in the UK don’t turn any bits of Kent French, or transfer St. Pancras
station to the Paris metro system.

So France is responsible for the
impact on free movement, due to its separate breaches of EU immigration and
asylum law. This shouldn’t be seen as a selfish or parochial conclusion; after
all, it’s not really radical to say that States are generally responsible for
what happens on their territory. That’s the normal rule of public international
law, and it’s linked to the basic principle of State sovereignty. The EU rules
in this case reflect that principle.

Having said that, allocating
responsibility does not as such solve the problem. It would be open to the
French government to denounce the treaty on juxtaposed controls, with a
negative impact on the UK. So it makes sense for the UK government to offer a contribution
to solve the problem, even if it is not obliged to do so. The government has
already accepted this principle, paying for the construction of a security
fence. And it would equally make sense to make a contribution as regards
immigration issues, for instance the costs of removal or basic support, linked
to a requirement to move to other parts of France to receive that support.

Thursday, 30 July 2015

The
recent ‘Five Presidents’ Report’ contains far-reaching proposals to deepen the
EU’s Economic and Monetary Union (EMU), which have been analyzed here. These proposals also have far reaching consequences for national
parliaments. The much needed democratization of the EMU requires national
parliaments to be assigned with stronger rights than the proposed intensification
of ‘dialogues’.

What
is at stake for national parliaments? The report proposes to come to a ‘system
of further sovereignty sharing within common institutions’ (p. 5). This system
would include, inter alia, a further Europeanization of economic policy
coordination, aimed at economic convergence of the Euro area. To that end, the
European Semester would be restructured and national ‘Competitiveness
Authorities’ would be set up in the Eurozone Member States. The proposals to
establish a Fiscal Union include the creation of an advisory European Fiscal
Board and a common macroeconomic stabilisation function to ‘better deal with
shocks that cannot be managed at the national level alone’. This last element
is similar to the tax authority proposed by German Minister Gabriel and French
Minister Macron as part of their plea for a radical integration of the Eurozone. It is unclear,
however, how the more long term perspective of creating a European treasury
would relate to national treasuries.

There
are more unclarities which make it difficult to assess how national parliaments
would exactly be affected. The European Fiscal Board would, for instance, only
have an advisory role. The general direction of the proposals is, however,
clear. The proposals would increase control of EU institutions over national
policies. Thus, a further Europeanization of economic policy making would be
the result. Second, the technocratic nature of decision making would be
strengthened. The further expansion of ‘rule-based cooperation’ and the
mandates of the new bodies would significantly contribute thereto.

Europeanization
and technocratization pose challenges for national parliaments. These are not
addressed, even though the report underlines that democratic legitimacy and
accountability should be the corner stones of the EMU. The proposals in this
regard do not add much to the already existing ‘six-pack’ and ‘two-pack’
arrangements and in any case do not extend beyond ‘streamlining’ procedures and
the strengthening of ‘dialogues’.

The
answer to these challenges cannot be the European Parliament, at least not the
European Parliament alone. It is true that the executive federalism that may be
witnessed in the field of economic policies requires a better position for the
European Parliament as well. But the European Parliament cannot substitute
national parliaments in economic policy making. First, there is no real
solution for the role of the European Parliament - representing citizens from
28 Member States - in decision making on measures that are limited to the Euro
area. Second, a substantial part of economic policy making is country specific.
This will remain so, even though the Five Presidents’ report contains proposals
to strengthen the euro area wide dimension of economic policy making. National
parliaments certainly qualify as the most obvious institutions to exercise
democratic control over the country specific part of economic policy making in
the EU. Thirdly, national parliaments’ constitutional rights are affected in a
very concrete manner by the proposals. Thus, strengthening their role would
also contribute to compensating that loss.

Taxation
and budget rights are among the most concrete constitutional rights that are at
stake for national parliaments. The right to decide on the national budget
implies budget autonomy. The German constitutional court, in its decision on
the constitutionality of the ESM-Treaty, ruled that: ‘Deciding on public revenue and public expenditure is a fundamental
part of the ability of a constitutional state to democratically shape itself. In
this context, the right to decide on the budget is a central element for
shaping opinions in a democratic society’.

Thus, the German constitution (as
well as the constitutional systems of many other Member States) would not allow
the national budget right to be relinquished altogether. Although the German
constitutional courts accepted the possibility of – even significant –
limitations to national budget autonomy, a suspension thereof for at least a
considerable period of time, would be considered unconstitutional by the German
constitutional court. The creation of a Macroeconomic Stability Function would
need to pass this test before it could be created. What is more, the Court made
it clear that it had formulated only minimum conditions and stressed the
discretion of the German legislature ‘to weigh whether and to what extent, in
order to preserve some discretion for democratic management and
decision-making, one should enter into commitments regarding future spending
behaviour and therefore – correspondingly – accept a restriction of one’s
discretion for democratic management and decision-making in the present’.

Closely
related (but in various constitutional systems recognized as a separate right)
is the right to decide on taxation. The constitutional significance of this
right, as well as its “sovereignty-sensitivity” have made it impossible thus
far to come to supranational taxes. The feasibility of a Euro area wide treasury
– whatever its exact form – is, thus, highly questionable.

The
position of national parliaments is also at stake with regard to macroeconomic
policies, which have redistributive effects. Specific national constitutional
guarantees are generally lacking in this area, but a Europeanization of these
policies is still particularly troublesome. This has to do with the lack of
common substantive principles or rules. Unlike fiscal policies – which are
‘rule-based’, such as the 3% rule - macroeconomic policies are essentially political
decisions, e.g on how labour markets and pension systems must be reformed and
whether and how national investment climates must be improved.

In
this light, the proposals from the Five Presidents’ report are too meagre for
national parliaments to ensure effective democratic control. It has to be acknowledged
that - should all of the plans indeed be realized - national parliaments would
be limited in their national decision making capacities on fiscal and economic
policies. This limitation of decision-making power should be compensated by
adequate accountability rights. It would therefore be far from sufficient to organize
plenary debates between the EP and the Commission and streamline the
interaction between the Commission and national parliaments and between the
European Parliament and national parliaments.

The
relationship between the Commission and national parliaments should be the
starting point for strengthening the position of the latter. It is one thing to
get the EU Commissioner to the national parliament to discuss country-specific
recommendations, but without the possibilities of sanctions this remains an
empty shell. The rules that have been developed in the context of EU
legislative procedures (most notably with regard to subsidiarity scrutiny) may
offer inspiration here. The right to make the Commission reconsider a
legislative proposal could, for instance, be applied in the context of economic
and fiscal policies as well: the national parliament at issue could be
empowered with the right to object to country-specific recommendations which
would lead to obligation for the Commission to reconsider these. In case of the
macroeconomic stabilisation function the existing mechanisms of cooperation
between national parliaments in the context of subsidiarity scrutiny could
offer inspiration. This could be linked to the right of assent for - a
qualified majority of – national parliaments.

The
exact shaping of national parliaments’ rights is, however, essentially a second
order issue. To get to that issue, it first needs to be acknowledged that a
genuinely democratic EMU requires national parliaments to have more at their
disposal than the right to be informed and to take part in economic dialogues.

Friday, 24 July 2015

Last week’s CJEU
judgment in C-83/14
CHEZ v Nikolova shows the important role of the CJEU to advance the
struggle of Roma communities against systematic discrimination by businesses
and Governments. Moreover, the Grand Chamber ruling on equal treatment establishes
a powerful tool for districts marginalized by powerful actors.

The case is a
great example of how the CJEU can empower lower national courts. The Bulgarian
Anti-Discrimination Commission had repeatedly condemned as discriminatory the practice
of electricity company CHEZ (aka CEZ) of placing meters out of reach of
consumers only in Roma districts. But CHEZ – a powerful company in Bulgaria and
Czech Republic - had persuaded the Supreme Court to reverse these rulings. To go
over the head of the Supreme Court, the Anti-Discrimination Commission referred
questions to the CJEU in Belov.
But the CJEU ruled the Commission was not a court and rejected the reference as
inadmissible. So the Sofia Administrative Court used the Nikolova case – an
appeal by CHEZ already before it – to refer similar questions. This led to CHEZ
judgment, in which the CJEU – though charged only with interpreting the law –
helps the national court with a clear evidential and factual path to draft a
judgment to survive further appeal.

Ms Nikolova is
not Roma. Two arguments were made against her because of this. First, that a
practice affecting a district could only be indirectly discriminatory on
grounds of ethnic origin if everyone in the district had that ethnic
origin. Second, that Ms Nikolova could not complain of discrimination. CHEZ
accepted that the idea of ‘discrimination by association’ could extend the
category of persons beyond those of Roma origin, but denied Ms Nikolova was
sufficiently ‘associated’ with her Roma neighbours.

The Court
rejected these arguments, ruling that the purpose of the Directive is to end
discrimination on grounds of racial or ethnic origin, not only to
protect individual members of groups who are targeted by discrimination
(para 56). Accepting Ms
Nikolova’s arguments, the CJEU repeated the passage from paragraph 50 of Coleman affirming that there is discrimination
against any person who, on account of those grounds, suffers less favourable
treatment or a particular disadvantage – regardless of the race or ethnic
origin of that person. So, if a measure against a district is based on grounds
of the Roma origin of the district’s majority, then the minority in that
district are also victims of that discriminatory measure.

Through this
approach, the CJEU affirms that the principle of equal treatment empowers every
affected individual – and the courts - to end discrimination by all available
means, urgently and effectively. Simplifying the law strengthens the ability of
oppressed communities to combat discrimination. Challenges will surely continue
to be made predominantly by people with the race or ethnicity on which the
discrimination is based. But the court defeats CHEZ’s attempt to require that
applicants ‘prove’ their own ethnicity and limits the enquiry to whether there
is discrimination and if so whether this discrimination affects the claimant.

The Court ruled
that CHEZ’s practice is direct discrimination, if the ethnicity of the
majority is the reason for the practice, for example, if CHEZ selected the
districts because of their Roma population (para 76).

The court made a
fundamentally important ruling on indirect discrimination: this requires any measure
disadvantaging a Roma majority district which is not applied to non-Roma
majority districts to be objectively justified. CHEZ wanted a narrow
interpretation of the comparator district, arguing that Ms Nikolova’s district
could only be compared to districts with similar levels of interference with
electricity meters. The Court rejected this, ruling that the appropriate
comparators are other urban districts provided with electricity by CHEZ (para
90).

These rulings on
‘district discrimination’ are very powerful tools. Politically weak communities
may be treated badly by government or business in areas like transport, power,
schooling and other amenities. Where this differential treatment follows
differences in ethnic make-up of districts, then groups or individuals in the
district can use the ruling to bring discrimination claims. Courts can order
disclosure of documents, to see if race was a factor in decision-making, as the
CJEU affirmed at paragraph 78. Where it was not a factor, the CJEU ruling on
comparators means authorities must show that the objective differences between
the districts justify the differential treatment. They may struggle to justify denial
of transport provision or electricity connection, or extortionate insurance or
service charges.

The final important
piece of the judgment is justification. The Court ruled that, even if race was
no factor in CHEZ’s decisions, the practice was seen by others as effectively
labelling a Roma community as electricity thieves, regardless of their payment
history and behavior. In the context of anti-Roma stereotypes, the measure was
seriously harmful. Agreeing with Ms Nikolova, the Court ruled that such a
practice is incapable of justification. The community has a right under
EU law to enjoy access to electricity “in conditions which are not of an
offensive or stigmatising nature and which enable them to monitor their electricity
consumption regularly”: para 128.

What happened to
the notion of ‘discrimination by association’? The CJEU accepted Ms Nikolova’s
argument that this is not part of EU law. It was the label attached by
practitioners and academics to the Coleman
judgment, but not one the Court had adopted. Like paragraph 50 of Coleman, which
the court cites, the Nikolova judgment makes no mention of ‘by association’. Dee Masters and Siȃn McKinley have argued
that this approach makes indirect discrimination unworkable in certain
situations. A coach reservation fee bears more heavily on people whose
disability gives rise to a need to be accompanied. The concept of ‘association’
is needed, they argue, to limit the class of potential claimants to persons
needed to accompany the disabled person. But this scenario is different from
Nikolova, where the measure applied only to users in the majority-Roma districts,
thereby putting all those users at a disadvantage when compared with users in a
different district. In the coach scenario, the charging practice applies to all
coach passengers. The differential disadvantage arises from the disability of
the passenger, not their membership of the larger affected group. The passenger
with a disability can complain about the negative impact of the fee for their
seat and that for the companion. Indeed, the companion may also argue that the
principle of equal treatment has been wronged as regards them. But a person who
has neither a relevant disability nor is a companion of such a person is not
affected by a differential impact on grounds of anyone’s disability. Ms
Nikolova was – she had a disadvantage compared to users in non-Roma districts.

CHEZ has
responded to the judgment by pointing
to recent deaths by electrocution in other parts of Bulgaria of people
attempting to make irregular connections: but it has not made meters inaccessible
in these districts. EVN, a different Bulgarian electricity provider, contradicted
CHEZ’s concerns about electricity theft. In the majority-Roma district in
Stoliponovo – where EVN put the meters at a normal level some years ago - 95%
of charges are paid. According to EVN, the real problem with electricity theft
in Bulgaria is professionals and rich people running hotels, pubs and ski
resorts.

The case now
returns to the Sofia Administrative Court, where Ms Nikolova will seek
an order that CHEZ restore the meters to their normal height for all users
in her district.

*Simon Cox is a lawyer at
the Open Society Justice Initiative and represented Ms Nikolova before the CJEU.
The Open Society Justice Initiative works to make law a more effective tool
against racial discrimination.

Tuesday, 21 July 2015

In last Thursday’s judgment on the Case
C-425/13, Commission v Council, the CJEU
was asked to determine the scope of the Council’s powers to issue negotiating
directives to the Commission and the role of the special committee overseeing
the Commission during the negotiations with Australia concerning the linking of
its emissions trading system with the EU. The case concerns the division of powers
between the Council and the Commission and the extent to which the former can
exercise some kind of control over how the latter is conducting international
negotiations.

Background

Between 2012 and 2013, the Commission negotiated an
agreement with Switzerland to link their emissions trading scheme to the EU’s. To be
better informed of the how the negotiations were being conducted, the Council
set up a special committee pursuant to Article 218 (4) TFEU (the Treaty clause
setting out rules on how the EU negotiates and concludes international
treaties). However, the Council was not completely satisfied on how the
Commission consulted this committee during the negotiations of the agreement.
Certain Member States argued that the information provided by the Commission
was scant. In fact, the Commission referred the Council to a website of the
Swiss Federal Office for the Environment when asked to provide an update on how
negotiations were going.

In light of what the Council regarded as the Commission’s failure to
effectively consult the special committee, when the Council adopted the
negotiating directives for the conclusion of a similar agreement with
Australia, it envisaged a greater involvement of the Council during the
negotiations through the special committee. The Decision of the Council of the
European Union of 13 May 2013 authorizing the opening of negotiations on
linking the EU emissions trading scheme with an emissions trading system in
Australia (Council Decision) establishes in the second sentence of Article 2 that
“the Commission shall report in writing
to the Council on the outcome of the negotiations after each negotiating
session and, in any event, at least quarterly.” Moreover, Article 1(2) of
the Decision states that the Commission shall conduct the negotiations in
accordance with the very detailed negotiating directives and procedures set out
in the Annex to the Council Decision. The annex provides, among other things,
that detailed negotiating positions of the Union shall be established within
the special committee.

Inasmuch as the Council Decision restricted the Commission’s scope of
maneuver when negotiating with Australia, the Commission brought an action against
it. The Commission’s plea boils down to two claims. First, the obligation to
report in writing after each negotiation session or at least quarterly
constitutes a breach of Article 13(2) TEU (role of the institutions), Article
218(2) to (4) TFEU (Treaty negotiation process), Article 295 TFEU (possibility
to conclude interinstitutional arrangements) and the principle of institutional
balance. Secondly, in so far as it provides that ‘detailed negotiating
positions of the Union shall be established’ by the special committee or the
Council, the Commission alleges a breach of Article 13(2) TEU, Article 218 TFEU
and the principle of institutional balance.

The Judgment of the CJEU

In relation to the Commission’s first claim, the Court
began by recalling the constitutional significance of Article 218 TFEU insofar
as it confers
specific powers on the EU institutions with a view to establishing a balance
between those institutions during the treaty-making procedure. In practice, Article
218 TFEU gives different roles to each institution. Even though the Treaties
have decided that the Commission is to act as the negotiator and to ensure the
EU’s external representation (in all those areas not covered by the CFSP, see article
17 (1) TEU), the Council is nonetheless entrusted with the power to sign and
conclude the agreement. According to the Court, in the context of those
functions, the Council and the Commission are required to comply with the
second sentence of Article 13(2) TEU, which states, “the institutions shall
practice mutual sincere cooperation.” Moreover, that cooperation becomes of
crucial importance for EU action at international level, as such action
triggers a closely circumscribed process of concerted action and consultation
between the EU institutions (para 64).

It is in this context of concerted action and consultation that article
13 (2) TEU triggers that article 218 (4) TFEU comes in, as the consultation and
cooperation between the Council and the Commission will be channeled through
the special committee. Consequently, what do the obligations of cooperation and
consultation amount to? For the Court, those obligations mean that the
Commission must provide the special committee with all the information
necessary for it to monitor the progress of the negotiations, such as, in
particular, the general aims announced and the positions taken by the other
parties throughout the negotiations. It is only in this way that the special
committee is in a position to formulate opinions and advice relating to the
negotiations (para 66).

In any event, the Court also reminds the Commission that regardless of
whether there is a special committee in place, it can be required to provide
that information to the Council as well. Given the role of the Council in the
treaty-making procedure, it should possess all the necessary information to
have clear knowledge of the ongoing negotiations concerning the preparation of
an agreement that will be submitted for its approval. Consequently, the Court
concludes that an obligation such as the one enshrined in Article 2 of the
Council decision which sets out the Commission’s obligation to report in
writing to the Council on the outcome of the negotiations after each
negotiating session and, in any event, at least quarterly’, is in conformity
with Article 218(2) and (4) TFEU (para 68).

Furthermore, the Court considers that an obligation of information as
the one recognized in Article 2 of the Council decision does not violate Article
13 (2) TFEU, insofar as the Council’s powers to lay down such an obligation of
information have been exercised with due regard to the Commission’s power to
negotiate international agreements (para 70).

Finally, in relation to Article 295 TFEU concerning the obligation to consult each other and by common
agreement make arrangements for their cooperation, the Court understands that
this obligation to conclude interinstitutional arrangements does not prevent the
Council from
being able to set out, in a decision authorizing negotiation, arrangements
relating to the information that the Commission must provide to it periodically
throughout the negotiating process (para 72). Hence, the Court dismissed the
Commission’s first claim.

In relation to the second claim, concerning the powers of the special
committee to establish detailed negotiating positions of the Union; the Court
conducts its analysis in two stages. First, it examines whether the Council has
the power to set up procedures pursuant to the first part of Article 218 (4)
TFEU, like the one enshrined in the annex of the Council decision. Secondly, it
focuses on the specific procedure set out in the annex to the Council decision
and more specifically the powers that were conferred upon the special
committee.

In the analysis of whether the Council has the power to set up a
procedure like the one drawn up in the annex of the Council Decision, the Court
examines the mandate of the special committee. In this regard, it considers
that the special committee designated by the Council has the mandate to follow
the conduct of the negotiations and guide the negotiator (para 76). In addition,
the Court argues that since the Council is empowered to designate a special
committee and the Commission is required to conduct the negotiations “in
consultation with” that committee, the Commission must inform the committee of
all aspects of the negotiations in order that it may be properly consulted
(para 77). Therefore, Article 218(4) TFEU generally allows the Council to set
out procedural arrangements governing the process for the provision of
information, for communication and for consultation between the special
committee and the Commission, as such rules meet the objective of ensuring
proper cooperation at the internal level (para 78).

However, when analyzing the minutiae of the annex to the Council
Decision, the CJEU considered that certain parts of that annex were not
designed to enhance the transfer of information and the consultation between
the special committee and the Commission. Instead, it argued that the
possibility for the special committee to establish detailed negotiating
positions as envisaged in the second sentence of the first paragraph of the
Annex seek to bind the Commission in contravention of article 218 (4) TFEU, Article
13 (2) TEU and the principle of institutional balance. For the Court, the power
to establish detailed negotiating procedures goes beyond the consultative
function assigned to the special committee. The annex has the effect of
imposing negotiating positions on the negotiator, i.e. the Commission (para
90). Therefore, the Court accepted the Commission’ second claim and partially annulled
the Council Decision.

Comment

To a certain extent, the EU’s
treaty-making procedure constitutes an example of the Principal – Agent
problem. The Council (Principal) authorizes the Commission (Agent) to negotiate
on its behalf, yet it does not completely trust the Commission. The Court understands that it is the
information asymmetry that fuels the Council’s lack of trust on the
Commission’s role as a negotiator. Consequently, anything in the Council
decision that might exceed the obligation to inform and consult would be a
breach of the principle of institutional balance, regardless of how badly the
Commission had previously complied with that obligation.

In this regard, a parallelism with Case C-658/12
European Parliament v Council (Mauritius, AKA Somali Pirates) (discussed here)
could be drawn. In that case the Court understood that by not informing the European
Parliament (EP) immediately and fully informed concerning the conclusion of an
extradition agreement with Mauritius, the Council had breached Article 218 (10)
TFEU. Inasmuch as that provision aimed as ensuring that the EP could
effectively exercise its powers in relation to the conclusion of international
agreements, the Council had breached the principle of institutional balance. In
the present case, the Court understands that an obligation to inform the
Council on on-going negotiations is an expression of that principle. The
Council also needs to be immediately and fully informed throughout the
negotiations of an agreement it will end up concluding.

Finally, in the last couple of years we have witnessed an increase in
the litigation between the different EU institutions concerning the exercise of
their powers and the delicate balance between them in the field of EU External
Relations. It appears that the EU institutions are still learning how to live
with each other after the Lisbon Reform. Yet within this learning process, it
appears, that the EU institutions seem to be moving away from cooperation
arrangements and are pushing for a rigid interpretation of their respective
powers. This is clearly seen in how the principle of institutional balance
figures prominently in the present case or in other cases such as Mauritius Island, Case C-409/13 (Council v Commission) concerning the Commission’s
right to withdraw proposals (discussed here), or Case C-28/12,
Commission v Council, (US Air Transport
Agreement). While in principle this is not per se a problem, it could signal that an
increasing institutional divide on the way the to conduct the EU’s external
representation after the Lisbon Treaty is emerging.

Friday, 17 July 2015

The
vast bulk of EU legislation and case law on sex discrimination aims to facilitate
women’s access to employment, and their equal treatment within the workplace. Yesterday’s
CJEU ruling in Maistrellis approaches
these issues from an unusual angle: the access of a father to parental leave, in a case where the mother of his children
was not working or seeking paid work at all. The judgment raises interesting questions about the role that EU employment and discriminaton law plays in family life.

Background

EU
rules on parental leave date from an agreement of social partners in
1996, which was updated in 2010. This case concerns the 1996 version of
the agreement, which begins by stating the social partners’ intention: ‘reconciling
work and family life and promoting equal opportunities and equal treatment
between men and women’. The preamble refers to the work/life balance point
(paragraph 4) and the promotion of ‘women’s participation in the labour force’
(paragraph 7). It also states that ‘men should be encouraged to assume an equal
share of family responsibilities’.

The
main text of the agreement makes clear that it sets out only ‘minimum
requirements’. It applies to ‘all workers, men and women’, who have an
employment contract or relationship as defined by national law. It gives ‘men
and women workers an individual right to parental leave’ on the birth or
adoption of a child, for at least three months, up to an age (up to 8) to be
defined by Member States or social partners. ‘To promote equal opportunities’,
the right should be non-transferable.

Detailed
rules on parental leave must be defined by national legislation and/or collective
agreements, as long as those rules meet the minimum requirements in the
Directive. These rules can: decide if parental leave is granted on a full-time
or part-time basis; set out a waiting period of up to one year of employment; adjust
the rules to the particular circumstances of adoption; establish notice periods
to be given to the employer; define when the employer can postpone parental
leave; and ‘authorise special arrangements’ for small businesses.

Furthermore,
the agreement specifies that workers who apply for or take parental leave are
protected from dismissal on those grounds. They have the right to return to the
same job (or a similar job, if that’s not possible) at the end of the parental
leave. Parents also retain any rights which they acquired before the parental
leave began, although it’s up to national law or employers to determine whether
parents are paid during their leave period. All social security issues are left
to national law. Finally, workers are also entitled to time off from work for ‘urgent
family reasons’, although the details and limits on this right are left to national
law and social partners to determine.

Judgment

The
father in this case was a Greek judge, who sought to exercise parental leave for
a paid period of nine months. In practice Greek law curtailed this benefit in
two ways: first of all by limiting it to mothers only; and secondly (in a rather
contradictory manner) by attaching strict conditions as regards fathers, which
didn’t apply to mothers. If a mother stays at home to look after the child (as
in this case), a father could only obtain the leave if the mother was unable to
look after the child due to illness or injury. The Greek courts had already
ruled that the first limit was inapplicable, and now asked the CJEU if the second
limit breached EU law.

According
to the CJEU it did, for two reasons. First of all, it breached the parental
leave agreement, because that agreement states that parental leave is an ‘individual
right’ which is ‘non-transferable’. Therefore (reiterating prior case law) it
applied to each parent. The possible
limits referred to in the Directive make no provision for denying parental
leave based on the employment status of the spouse. This literal interpretation
was reinforced by the overall context of the agreement: obtaining a better
work/life balance, and encouraging men to take on more family responsibilities.
The right to parental leave also appears in the EU Charter of Fundamental
Rights.

Secondly,
the Greek rule also violated the EU Directive on sex discrimination in
employment. That was because parental leave was a working condition, and the
position of men and women was ‘comparable’ as regards bringing up children. The
Greek law attached a condition to fathers that it did not attach to mothers, so
constituted sex discrimination.

Furthermore,
this distinction ‘is liable to perpetuate a traditional distribution of the
roles of men and women by keeping men’ in a ‘subsidiary’ role as regards
parenting. While the Directive does provide that it is ‘without prejudice’ to
the parental leave agreement and the pregnant workers’ Directive, the ‘deprivation’
of a father’s parental leave ‘in no way’ helps the health and safety of
pregnant workers or new mothers, which is the purpose of the latter Directive.

Comments

First
of all, it should be noted that Greek law, for at least some workers, far
surpasses the minimum rules in the agreement – nine months’ paid leave, rather
than three months’ unpaid leave. Very few parents in the EU will have access to
this generous a parental leave – even the two weeks of paid leave which I
enjoyed for each child is better than many fathers get. Indeed, the EU’s
pregnant workers’ Directive only requires new mothers to get 20 weeks’ maternity
leave on sickness pay (not full pay) as a minimum (note that parental leave
applies in addition to maternity leave). It’s doubtful that the EU economy as a
whole could withstand such generosity, and indeed I wonder if the Greek benefit
has since become rather less generous due to the demands of the Troika.

So
it’s important to emphasise that the CJEU is not requiring all employers to give fathers nine months’ fully paid
leave for each child. Rather, whatever the period of parental leave (which need
not even be paid), it cannot be subject (for fathers) to conditions relating to
the mother’s employment status.

The
judgment has several interesting implications. First of all, while the CJEU has
traditionally ruled that EU sex discrimination law cannot apply to same-sex
couples (see the Grant
judgment), it’s arguable that the parental leave agreement can. While that agreement
does refer to ‘men’ and ‘women’, the Court’s emphasis on parental leave as an individual right, and the EU Charter ban
on discrimination on grounds of sexual orientation, points in favour of it
applying to same-sex parents. Although it would be possible to use the EU’s
framework equality Directive to challenge a limitation on parental leave
based on sexual orientation, it’s possible that parental leave is being limited
on a basis other than sexual orientation. In any event, a gay or lesbian parent
may prefer to invoke rights as a parent.
Having said that, it should be noted that the civil status of same-sex couples
(ie access to marriage), is, as EU law currently stands, a matter for Member
States to decide (for more on this, see Alina Tryfonidou’s recent blog post).
This must equally apply to adoption.

Secondly,
the ruling is similarly relevant to any family that does not take the form of two
married parents. It must follow from the Court’s ruling that it’s irrelevant
whether the parents are unmarried, or whether the parental leave right is being
claimed by a single parent. Again, it should be pointed out that EU law doesn’t
determine who has custody of a child – at most, it determines which court has
jurisdiction to rule on this issue where there is a cross-border element.

Thirdly, while the ruling
implicitly extends the parental leave agreement to such non-traditional
families, it explicitly confirms its application to the most traditional form of all: families with a stay-at-home mother. As
noted above, EU sex discrimination law has its own tradition, constantly aiming
to encourage mothers to work. Yet in this case, the Court skipped over the many
references to this objective in the relevant EU laws, and asserted instead the father’s
individual right to parental leave as well as his right to non-discrimination on
grounds of sex.

Reading the case more carefully
though, the judgment does challenge the traditional family model in a different
way: not by encouraging mothers to return to work (although of course this is
still relevant in most other cases), but by encouraging fathers to help them at
home. Thirty years ago, the Court was concerned (in its Hofmannjudgment) that EU law should not 'alter the division of responsibility between parents', as regards gender roles in the household. Now it’s concerned to make sure that those roles
are shaken up.

It’s surely true to say that equality
between men and women can’t be achieved without challenging those roles. Yet it’s
interesting that in this judgment, the Court wants those roles to be challenged
even if there’s no link with the mother’s employment. In this vein, the Court’s
assertion that equal treatment as regards parental leave will not undermine the
health and safety of new mothers is the understatement of the year: what new
mother wouldn’t welcome the assistance
of the baby’s father for even a short period, never mind nine months? But this
approach subtly alters the purpose of the pregnant workers’ Directive, which is
about employed mothers, not those who
stay at home. Of course, the Court’s interpretation is entirely justified on
social grounds: new mothers can use the help of fathers whether the mothers are
employed or not.

Finally, the Court’s ruling
implicitly emphasises the value of strengthening both parents’ ties with their
children, regardless of any link with the mother’s employment. It’s a good time
to reaffirm this link, as parents across EU (including the Court’s staff) brace
themselves for the start of summer holidays. For parents, this is an
unavoidable and poignant reminder that our babies grow up, our little ones get
bigger, and the time we spend with them is always slipping through our fingers.

Thursday, 16 July 2015

Yesterday’s
CJEU ruling in Singh addresses
an important issue: What happens when a marriage between an EU citizen (who has
moved to another Member State) and a non-EU citizen ends, after the EU citizen
has already left that Member State? The EU Citizens’
Directive contains rules on both issues (divorce and
departure), but those rules appear to conflict with each other nearly as much
as divorcing couples do. Unfortunately the Court of Justice chose the
simplistic approach to this issue, following its Advocate-General’s opinion. My
comments below therefore are adapted from my earlier comments on that
opinion. (Note that there is also a reference pending from
the UK on these issues).

Background

EU
free movement legislation, in the form of the Citizens’ Directive, gives EU
citizens the right (subject to certain conditions) to move to another Member
State, joined or accompanied by their spouse and other specified family
members. But what happens if that marriage ends? According to the CJEU case law
beginning with Diatta,
a ‘spouse’ remains a spouse (and therefore still entitled to derived free
movement rights, if that spouse is a non-EU citizen) even if the couple in
question is separated, up until the date when the divorce becomes final. After
the divorce, the Court ruled in case law starting with Baumbast that
since the Regulation on
free movement of workers gives the children of EU workers (or former workers) a
right of access to education, they were entitled to stay on the territory to
exercise that right, and the non-EU parent who cared for that child had a right
to stay too (regardless of any divorce from the EU citizen), otherwise the
child’s right would be ineffective.

Other
cases where a marriage between an EU citizen and a non-EU citizen end are
regulated by the citizens’ Directive (if the EU citizen has moved to another
Member State). Article 12(2) of that Directive provides for the non-EU family
members to retain residence rights in some cases if the citizen dies. Article
12(3) provides for the non-EU family members to retain residence rights if
there are children left behind who are still studying, where the EU citizen
dies or leaves the host Member State. Article 13(2) then specifies the right to
remain of non-EU family members, in the event of divorce or end of a registered
partnership. There are four alternative possibilities for retaining the right
of residence in this case. The first possibility allows the right to be
retained if the marriage or partnership has lasted at least three years,
including at least one in the host Member State, ‘prior to the initiation of
the divorce or annulment proceedings or termination of the registered
partnership’. (After five years’ legal residence, the non-EU family members
obtain permanent residence status; the complications arise in the period
beforehand).

The Singh case,
referred from the Irish courts, concerns three divorcing couples. In each case,
the criteria in Article 13(2) are met, except that the EU citizen first of all
departed Ireland, leaving the non-EU spouse behind, and then initiated
divorce proceedings. So in a case involving both a
departure and a divorce, what rules govern the situation?

The
judgment

The
Court rules that in principle third-country national family members of an EU
citizen who has moved to another Member State lose their right to reside there
under the Directive as soon as the EU citizen moves out of that country.
Therefore Article 13(2) does not protect them unless divorce proceedings have
started before that EU citizen leaves
(assuming that the waiting period condition set out in Article 13(2) has also
been satisfied). The later divorce petition cannot revive the right of
residence, since Article 13 talks only about ‘reviving’ rights. However, it is
open to a Member State to be more generous if it wishes to, as Ireland was in
this situation.

Unlike
the Advocate-General, the Court doesn’t discuss the possible relevance of the
EU Charter of Fundamental Rights. Nor does it comment on Article 12 of the
Directive, or the principle of legal certainty, or suggest solving the problem
by having the non-EU citizen accompany the EU spouse to another Member State.

Next,
the Court reiterates prior case law that the EU citizen and his or her family
still have rights under EU free movement law even if the EU citizen is not
working but the non-EU spouse is, thereby providing ‘sufficient resources’ for
the EU citizen, for the EU citizen doesn’t have to be the source of those
resources himself or herself.

Comments

With
great respect, this judgment is highly problematic. The starting point is an
over-literal interpretation of the relationship between the rules on departure
and divorce in the EU citizens’ Directive. This leads the Court to interpret
the law in a way which fails to take account of the consequences of the
judgment, and leads to results which were surely not intended by the EU
legislature.

The
starting point is the plain wording of Article 13(2)(a) of the Directive, which
in no way states that the EU citizen has to be present in the host Member State
when divorce proceedings begin. It only refers to the amount of time that the marriage
has subsisted, including time in the host State.

To
determine whether the departure of an EU citizen before those proceedings start
means that the non-EU family member loses his or her rights, the Court should
have interpreted Article 12(3), which specifically sets out rules on departure
of EU citizens. However, that provision doesn’t suggest (by means of words like
‘only’ or ‘except where’) that it sets out an exhaustive list of cases where non-EU family members get to stay
despite the EU citizen’s departure. Arguably, if the EU legislature had wanted
to create an exception to the rules on divorcefor cases relating to departure, it would have done so
expressly. Anyway, two of the four grounds for obtaining legal residence in the
event of divorce (access to children and custody of children) will usually
cross over with the grounds to remain after departure referred to in Article
12(3). If Article 12(3) were the only ground for the right to stay after
departure, the reference to these cases in Article 13(2) is therefore largely
redundant.

The
Court’s ruling creates problems for legal certainty, because it will not always
be clear if an EU citizen has left the country. What if the marriage is initially
intact despite a cross-border separation, (the opinion suggested an exception
for such cases)? How long a period in another Member State is necessary to
count as a ‘departure’? What if the EU citizen decides to come back to the host
State? What about cases where the EU citizen steps outside for the proverbial
pack of cigarettes – and then goes missing? How can we be sure that the EU
citizen is no longer in the host Member State? Who has the burden of proof in
such cases – the host State’s authorities, or the family member who has been
deserted?

It’s
striking that for the other three categories of cases where non-EU
citizens retain residence rights despite a divorce (custody of children, access
to children, domestic violence), there’s no reference to when
the divorce proceedings were initiated. Does the Singh ruling mean that even if these hardship cases, the
third-country national family member loses rights as soon as the EU citizen has
departed?

It
should be noted that the third-country nationals concerned may have rights
under other provisions of EU law, for instance if they are refugees, Turkish
citizens covered by the EU association agreement with Turkey, or possibly long-term
residents who could obtain rights under the EU long-term residents’ Directive
by adding periods of prior legal stay in that Member State to the time spent as
the family member of an EU citizen. The latter Directive does not apply in Ireland
(or the UK or Denmark), but could be relevant for people in the same position in
other Member States. As noted above, they would also have rights if they are
the carers of children of an EU citizen in the host State, or permanent
residents under the EU Directive.

The
Court’s ruling creates a ‘rush to court’ incentive for the non-EU spouse, who
will need to bring divorce proceedings before the EU citizen leaves the
country. The EU’s rules on civil
jurisdiction in divorce cases give jurisdiction to the courts of the
Member State where one or both spouses are ‘habitually resident’. But that term
is not defined in the Regulation, and so it might be argued that the courts of
the host State, at least in some cases, will not have jurisdiction. Anyway, it
is not unreasonable to expect the non-EU citizen concerned to devote his or her
efforts to saving the marriage – and it’s even possible that he or she is
unaware of the problems in it (where an EU citizen is having an affair, for
instance).

So
what should the Court have ruled? Admittedly, the Directive is very unclear
about the relationship between divorce and departure. But the rules on divorce lose
much of their effet utile if they cease to apply simply because
the EU citizen left the country – particularly given that the whole point of EU
law in this field is to promote such free movement in the first place. The better
way to reconcile the two sets of rules would have been to rule that Article
13(2) can confer a right of residence where a divorce application has been
lodged within a reasonable period after the EU citizen has left the country.
That’s undeniably vague. But the Directive is full of vague rules, such as the
need to assess whether there is a reasonable prospect of finding employment, or
to apply a case-by-case assessment of those convicted or crimes or applying for
social assistance. And, as pointed out above, the Court’s approach of relying
upon the amorphous concept of ‘departure’ isn’t any more precise anyway.